IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 : 

LEE ARTERS t/a GREENDALE BUILDERS : CIVIL ACTION - LAW 

 : 

 : 

 Plaintiff, : 

 : 

 v. : 

: No. 02-CV-4388 

ZURICH AMERICAN INSURANCE CO. t/a, : 

ZURICH NORTH AMERICA as successor in : 

Interest to ASSURANCE CO. OF AMERICA, et al. : JURY OF TWELVE (12) 

 : DEMANDED 

 : 

 Defendants. : 

___________________________________________ : 

PLAINTIFF’S REPLY BRIEF TO DEFENDANT’S BRIEF IN OPPOSITION

I. INTRODUCTION: 

 Plaintiff has moved for Partial Summary Judgment in its Declaratory Action matter 

praying for an Order that the Defendant insurance company be obligated to defend them in a 

personal injury action filed in Delaware County wherein the Plaintiff is Thomas Gorman and the 

Defendants are Mr. and Mrs. Arters and Greendale Builders. Defendant insurance company has 

opposed the Motion and has filed a Memorandum in support thereof. Plaintiff files this Reply 

Memorandum. 

II. THE ISSUE: 

 Plaintiff respectfully suggests that the issue to be decided by the Court is not to decide the 

relationship between the Greendale Builders and Thomas Gorman, as suggested by the 

Defendants. That issue is to be decided by the jury in the underlying case in Delaware County. 

The issue before this Court is restricted to determining whether the insurance company 

wrongfully denied the Arters and Greendale Builders a defense based upon the information that 

the insurance company had at its disposal when the Gorman Complaint was filed. The present 

Case 2:02-cv-04388-JF Document 23 Filed 11/05/2003 Page 1 of 2
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issue is whether the insurance company must defend. The issue as to whether they must 

indemnify (i.e., whether the relationship between Gorman and Greendale was independent 

contractor, temporary employee, or an employee) should be decided by a jury in the underlying 

case. 

 The Plaintiff respectfully suggests as it did in its Brief in chief, that the question of 

coverage must be determined from the four corners of the Complaint filed by Mr. Gorman. 

Plaintiff asserts that it has demonstrated beyond doubt that the insurance company denied 

coverage by attempting to project that they would not be required to indemnify because it 

anticipated that someone in the future would define the relationship between the parties as one as 

employer/employee. 

 As Pennsylvania law clearly demonstrates, the duty to defend is separate from the duty to 

indemnify. The Defendant insurance company here projected that since they would ultimately 

prevail on the status of the parties, i.e. not have to indemnify, that they therefore were not 

required to defend, an obviously incorrect conclusion. 

 The e-mails attached to Plaintiff’s Brief in chief demonstrates beyond doubt that that the 

Defendant considered matters dehors the underlying Complaint contrary to Pennsylvania law. 

 Consequently Plaintiffs respectfully pray that the court enter an Order granting their 

Motion and ordering the Defendant insurance company to defend them in the underlying action. 

 Respectfully Submitted: 

 VAUGHAN, DUFFY & CONNORS, LLP 

 By: 

 Francis X. Nolan, Esquire, I.D. 09237 

 Attorney for Plaintiff 

 102 Pickering Way, Suite 400 

 Exton, PA 19341 

Date: November 4, 2003 (610) 524-2100 

Case 2:02-cv-04388-JF Document 23 Filed 11/05/2003 Page 2 of 2